14 Mo. 386 | Mo. | 1851
delivered the opinion of the court.
The appellant was first indicted on the 25th day of Nov. 1848, in the St. Louis criminal court, for the crime of burglary.
He was arrested and lodged in the calaboose, from which he broke out, and was afterwards re-arrested in the city of New Orleans, under
The appellant was brought to trial on this first indictment on the 15th March, 1849. During the progress of the trial, the circuit attorney entered a nolle prosequi, on account of a variance in the names of the persons whose dwelling house was said to have been broken into and entered. The dwelling house was charged to be the dwelling house of Samuel A. Bowen, and the proof showed the house to be the dwelling house of Samuel A. Bowen and William Hurlbut.
The defendant was again indicted on the same day that the nolle pro-sequi was entered.
On the 12th day of April, 1849, at the same term of the court at which the second indictment was found, the defendant was brought to trial and convicted. A motion was made for a new trial, and on the 28thday of same month, April, 1849, a new trial was granted. On the 1st of May the defendant prayed for a change of venue, and it was ordered to St. Charles circuit court. And nothing further is seen upon the record of this cause, until sometime in October following. There wras no law authorizing a change of venue in criminal cases in St. Louis county, when the order of change was made — a new statute prohibiting it, which was not known to the court or counsel when the order was made.
The State after this order of change of venue again indicted the defendant, being the third indictment, which last indictment was found by the grand ]ury on 22nd of August, 1849, being at the July term of the said criminal ci urt.
This last indictment had the effect to suspend the one that had been sent by change of venue to St. Charles county, according to the fourth sec. of the fourth art. of Practice in Criminal Cases. Rev. Code, 1845, p. 867-8.
On this last indictment the defendant was tried on the 21st of Dec. 1849, and was convicted, and sentenced to ten years imprisonment in the State Penitentiary. A motion was made for a new trial, overruled, excepted to, and the defendant brings the case to this court by appeal.
The trial of this last indictment was continued at one term after it was found, that is at September term 1849 for want of time to try it.
The defendant moved the court to discharge him from this last indictment on the 29th of August shortly after it was returned into court He also moved the court to discharge him on the 1st of Nov. 1849. These motions were founded on the 25 sec. of art. 6, Practice in Criminal Cases, “If any person indicted for any offence and committed to
There is no pretence for any grounds on which their motions can be sustained as far as regards this indictment. There was but one term of the court which intervened between that at which the indictment was found and that at which the trial was had, viz: September term, 1849, and then this case was continued for want of time to try it. The first indictment was not in force; a nolle prosequi had been entered on it by leave of the court, by the circuit attorney.
The second indictment had been tried once, the defendant convicted thereon, a new trial granted to him on his motion therefor, after which he procured an improper (because there was no law authorizing it)' change of venue to St. Charles county. I do not think the court below committed any error in overruling these motions.
The only remaining points are the admission of improper evidence- and the refusal to give instructions.
The circuit attorney gave evidence of the defendant’s attempt to make his escape by using a false key, &c. The appellant complains of this as error. This kind of evidence comes within the principles of the authorities cited in brief of the counsel for the State. See Roscoe’s Criminal Evidence, pages 17, 18, Wharton’s Criminal Law, 197, and I cannot say that the admission was wrong.
There is no error in the act of the court below in refusing the leave to defendant below to admit the records of the two former indictments against the defendant. These had nothing to do with the facts of the case, nor with the guilt or innocence of the defendant and could not possibly have any legal bearing on the subject before the jury.
We find no fault with the instructions given, nor with the court in refusing those refused. I think the cause was fairly put on all the facts and the law before the jury, and I am unwilling to disturb their verdict.
Let the judgment, therefore, be affirmed,